Court rules against Dysart resident in wind ordinance lawsuit

Richard Arp (left) listens as fellow Tama County Against Turbines leader Jon Winkelpleck (center) speaks during a Tama County Board of Supervisors meeting in Toledo on April 25. Arp, a Dysart resident and farmer, filed a petition for declaratory judgment against the board on June 23 over the entity’s May 16 reaffirmation of the county’s 2010 wind energy conversion system ordinance. –Photo by Ruby F. Bodeker

The Iowa District Court of Tama County made a ruling on October 6 for the case Richard W. Arp vs. the Board of Supervisors of Tama County, Iowa, determining an oral argument was unnecessary.

Plaintiff Richard Arp of Dysart filed a petition for declaratory judgment against the Defendant Tama County Board of supervisors on June 23, 2022, asking the Court to declare the Board’s action to reaffirm the 2010 Commercial Wind Energy Conversion System ordinance ‘as is’ without any changes on May 16, 2022, as illegal and void as a matter of law.

Plaintiff Arp’s Petition for the Court to “command [Defendant] to publish notice…and…hold a public hearing…regarding reconsideration of the [Ordinance], and ‘enter an order temporarily restraining [Defendant] and other Tama County agencies from authorizing or approving any permits for new commercial wind energy projects, or additional permits for existing wind energy projects, until after [Defendant]…has published notice and held a hearing.”

Plaintiff Arp asserted the Board of Supervisors didn’t follow the required procedures before their May 16, 2022, vote to reaffirm the Ordinance and argued the Board reaffirmed the ordinance without amendment due to their fear of a lawsuit by Salt Creek Wind, LLC.

The defendant, the Tama Co. Board of Supervisors, filed its answer and affirmative defenses on July 11, 2022, denying the adverse assertions made in Plaintiff Arp’s Petition. Additionally, the Board asserted the Court lacks subject matter jurisdiction over this matter because their reaffirmation of the ordinance is purely a legislative act, and the Defendant “has legislative immunity from suit based on its final decision of May 16, 2022.”

The Court’s primary legal issue to determine in the matter was whether Defendant’s action on May 16, voting to reaffirm the ordinance, was quasi-judicial. Plaintiff Arp went on to file a Writ of Certiorari.

The dismissal of the Petition by the Court was due to the Plaintiff’s untimely petition for Writ of Certiorari within the 30-day period. Plaintiff Arp argued that the May 16 vote “was never a final decision” because the Defendant Board “lacked the authority to act.” The Court was not persuaded by this argument and determined the Defendant’s Vote was quasi-judicial in accordance with Iowa Code 331.201(5).

The Iowa Supreme Court maintained that a county board of supervisors’ “noncompliance with the statutorily required public notice and hearing requirements,-as required by Iowa Code sections 335.6 and 335.7–deprived the Board of subject matter jurisdiction concerning the proposed zoning change and…the district court, therefore, should have sustained plaintiff’s petition for writ of certiorari challenging the zoning change.”

The order for Motion of Judgment on the Pleadings filed by the Defendant Tama Co. Board of Supervisors was granted by the Courts, and the action was dismissed without prejudice on October 6.